Civil (3)
Terms
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- What are the risks in calculating time incorrectly?
- A client's claim may be struck out
- How does the CPR assist in terms of counting time.
- The CPR contains rules to work out the deemed date of service of documents. These rules provide the parties and the court with firm dates to work from.
- Under the CPR, how long does a defendant have to respond to proceedings?
- 14 days from deemed service of the particulars of claim (CPR 10.3 and 15.4)
- True or false, a defendant must file an acknowledgement of service in every case if it intends to defend the claimant's claim?
- False. CPR 9 and 10.3 provide that the acknowledgement of service is optional.
- If an acknowledgement of service is not served, what must the D do?
- File its defence within 14 days of the particulars of claim (CPR 15.4)
- Having filed an acknowledgement of service indicating an intention to defend the claim, how long does a defendant have to file a defence?
- 28 days after service of the particulars of claim (CPR 15.4)
- Can a defendant admit the claim in an acknowledgement of service?
- No. If the defendant admits the claim, it should file an admission (CPR Part 9)
- Are Saturdays and Sundays included if the specified period is 5 days or less?
- No. Saturdays and Sundays are excluded if the specified period is 5 days or less (CPR 2.8(4) and (5))
- True or false, a period of time expressed as a number of days shall be computed as clear days?
- True - CPR 2.8(2)
- What will happen if the defendant does not reply in time?
- The claimant can apply for judgment in default, in other words it can obtain judgement immediately without disclosure, witness statements or trial.
- If judgement in default has been granted. What can the defendant try to do?
- The defendant can try to set aside or vary the default judgement.
- When must a court set aside default judgment?
- Where any of the factors in CPR 13.2 are satisfied
- When may a court decide to set aside default judgment?
- When any of the factors in CPR 13.3 are satisfied.
- What is a defence?
- This is a document in which the defendant responds to each point made by the claimant in the POC and sets out its own case.
- What can a defendant respond to a claimant's allegations?
-
The defendant can:
1. Admit
2. Deny
3. Put to proof - When will the D admit an allegation?
- When the D knows the allegation (or statement) to be true
- When will the D deny with reasons?
- When the D knows the allegation or statement to be false
- When will the D put the claimant to proof?
- If the D cannot say for certain whether the allegation is true or false (so can't admit or deny)
- What else should the defendant do?
-
The defendant should also (where appropriate) make a positive case (CPR 16.5(2)) . For example:
1 - Give reasons for denial
2 - Set out a different account of events
3 - Deal with limitation, mitigation, damages - What must you think about when you are asked to redraft a document in Civil?
-
1. Format
2. Typographical errors/factual errors
3. Content - What must a particulars of claim contain?
- A statement of truth
- What must be included at the end of a particulars of claim?
-
(1) Law firm's name
(2) Statement of truth
(3) The individual's name and position in the Claimant (if a corp.)
(4) 'Served this [X] by law firm inc. address, solicitors for the Claimant. Ref: [X] - What is a the statement of truth for an individual?
- I believe that the facts stated in this Particulars of Claim are true
- What is a statement of case when acting for a corporate?
- The Claimant believes that the facts stated in this Particulars of Claim are true. I am duly authorised by the Claimant to sign this statement,
- What sentence should you include in your Particular of Claim related to interest?
-
(1) The Claimant claims interest
(2) on the damages referred to in para [X] above
(3) pursuant to [section 35A Senior Courts Act 1981 OR section 69 of the County Courts Act 1984 OR contract]
(4) at such rate and for such period as the court thinks fit. - Does a Particulars of Claim usually include a prayer?
- Yes
- How would a prayer usually be worded for a C?
-
AND THE CLAIMANT CLAIMS:
(i) damages under para. X above; and
(i) interest under para. Y above. - What should you do at the start of a defence?
- Add the sentence - The definitions used in the Particulars of Claim are adopted
- What should you include at the end of a defence?
-
(1) General denial (in full or part)
(2) Law firm's name
(3) Statement of truth
(4) 'Served this [X] by law firm inc. address, solicitors for the Claimant. Ref: [X]